Onward! The Sixth Circuit Denies Rehearing En Banc in Raybon

Practitioners know, but the public may not, that some of the most consequential decisions courts make are not reported in the news or even in publicly available opinions. Indeed, some of these decisions don’t even come with much explanation.

Many federal prisoners who were sentenced as career offenders when the guidelines were still mandatory have been trying to get courts to consider whether their sentences are unconstitutional according to the rule announced in Johnson v. United States. Johnson held that the so-called residual clause of the Armed Career Criminal Act is unconstitutionally vague. The Supreme Court said that rule is retroactive, meaning that those who were serving sentences imposed because of the ACCA’s statutory mandatory minimum could have re-sentencing hearings. Although the Court held that Johnson’s rule did not apply to those who were designated career offenders under the advisory guidelines, the Court did not address the application of Johnson to the mandatory guidelines.

In August, the Sixth Circuit held that these prisoners sentenced during the pre-Booker years under mandatory guidelines could not use Johnson to get new sentences because their petitioners were not “timely.” A § 2255 motion is timely when filed within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). The court reasoned that these prisoners, like Jerome Raybon, who filed their § 2255 petitions within one year of the Johnson opinion had filed too soon because the Supreme Court has not yet said explicitly that Johnson’s holding applies retroactively to the mandatory guidelines. (Full disclosure: my office represents Mr. Raybon.)

Mr. Raybon filed a petition for rehearing en banc. Since that time, many prisoners who happen to reside in the Sixth Circuit have been denied the opportunity to litigate the legal questions raised in their petitions. The First Circuit has criticized the Sixth Circuit’s approach. But, on December 6, 2017, the Sixth Circuit denied Mr. Raybon’s petition because less than a majority of the judges voted to hear the case en banc.

That small decision carries significant consequences for prisoners in the Sixth Circuit. Attorneys representing these people should continue to argue that Raybon was wrongly decided. Maybe the full court will address the question at some other time. Until then, however, Raybon remains the law in Michigan, Ohio, Tennessee, and Kentucky unless the Supreme Court intervenes. The men and women sentenced pre-Booker must wait patiently in prison until that time if it comes at all.